State Consumer Disputes Redressal Commission
Medical Officer, Incharge Esi ... vs Mohammed Nasir on 7 September, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1092 of 2014
Date of institution : 04.08.2014
Date of decision : 07.09.2015
1. Medical Officer, Incharge ESI Dispensary, Lal Bazar,
Malerkotla.
2. Medical Superintendent, Deputy Director Zonal, ESI Model
Hospital, Bharat Nagar Chowk, Ludhiana.
3. Director, Health Services (SI), Punjab, Privar Kalyan Bhawan,
Sector 34-A, Chandigarh.
....Appellants/Opposite Party Nos.3 to 5
Versus
1. Mohammad Nasir son of Abdul Sattar;
2. Raffia wife of Mohammad Nasir son of Abdul Sattar;
Both residents of Langarhi Bhumal Ahemadpura, Malerkotla.
....Respondents/Complainants
First Appeal against the order dated
09.04.2014 of the District Consumer
Disputes Redressal Forum, Sangrur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Baldev Singh Sekhon, Member
Mr. Vinod Kumar Gupta, Member Present:-
For the appellants : Shri B.S. Dhillon, AAG, Punjab For the respondents : Ex parte JUSTICE GURDEV SINGH, PRESIDENT :
The appellants/opposite party Nos.3 to 5 have preferred this appeal against the order dated 09.04.2014 passed by District Consumer Disputes Redressal Forum, Sangrur (in short, "District Forum"), vide which the complaint filed by the respondents/ complainants, under Section 12 of the Consumer Protection Act, First Appeal No.1092 of 2014 2 1986, was allowed and these opposite parties were directed to settle/pay their claim according to the rates fixed by the Director, Family and Health Welfare, Punjab, for a similar treatment as taken by complainant No.2 and to pay Rs.10,000/-, as consolidated amount of compensation for the mental tension and harassment suffered by them and Rs.5,500/- on account of litigation expenses.
2. The complainants alleged, in their complaint, that Mohammad Nasir, complainant No.1, is the employee of M/s Sohrab Spinning Mills Limited, Nabha Road, Malerkotla and is covered under/insured with the opposite parties at ESI IP No.1207222538. Some part of the ESI contribution is paid by him and the remaining part is being paid by his employer. His wife Raffia, complainant No.2, also stands covered under that insurance. That complainant became pregnant by the end of 2011/starting of 2012 and her level of Hemoglobin was very low and she was not feeling well. Accordingly, he got her admitted in Hazrat Haleema Maternity & General Hospital, Malerkotla on 24.07.2012 and at that time, she was having seven months pregnancy. Due to weakness, she started bleeding and the delivery was done with the help of caesarian operation. At that time, three units of blood were administered to her. She had been facing a number of problems, including the breathing problem and kidney problem on account of non-passing of the urine. She was referred to and was admitted in Dayanand Medical College & Hospital, Ludhiana and thereafter, on account of the breathing problem, was shifted to Hero DMC Heart Institute, Ludhiana; where she remained admitted upto 06.08.2012. He spent more than Rs.65,000/- on her treatment, First Appeal No.1092 of 2014 3 which included the price of medicines, food and transportation etc. He submitted the claim, along with all the documents, with the opposite parties, but nothing was done and at last, he was informed, vide letter dated 22.04.2013, that the amount claimed by him was not payable and he was asked to give undertaking that he would accept the reimbursement of the expenses incurred by him on the treatment of complainant No.2, as per the rates fixed by the Director, Family and Health Welfare, Punjab, for a similar treatment/package or actual expenditure, whichever was less. He requested the opposite parties that it was an emergency case and life of his wife and baby was at stake, due to which he got her admitted in the said hospital at Malerkotla and thereafter, in the hospital at Ludhiana. However, all his requests fell on their deaf ears. They refused to make the payment of his claim. He was entitled to all the benefits under the Employees State Insurance Act and the opposite parties were bound to make the payment of full amount; the reimbursement of which was sought by him by way of the claim. On all these facts, he prayed for the issuance of following directions to the opposite parties:-
i) to pay the amount of medical bills of Rs.52,714/- and Rs.4,520/- (total Rs.57,234/-), along with interest at the rate of 24% per annum from 06.08.2012 till the date of payment;
ii) to pay Rs.35,000/-, on account of mental agony and physical harassment; and
iii) to pay Rs.5,500/-, as litigation expenses.
3. The complaint was contested by the opposite parties. Opposite party Nos.1 & 2 filed joint written reply; in which they First Appeal No.1092 of 2014 4 admitted that complainant No.1 was an employee of M/s Sohrab Spinning Mills Limited, Nabha Road, Malerkotla, and that he himself, his wife and daughter were insured with them. They did not dispute that complainant No.2, wife of complainant No.1, was pregnant and was admitted in Hazrat Haleema Maternity & General Hospital, Malerkotla, where she delivered a child by way of caesarean operation and that on account of the facing of the breathing and kidney problem by her, she was referred to and was admitted in DMC & Hospital, Ludhiana and thereafter, was shifted to Hero DMC Heart Institute and remained admitted at that place upto 06.08.2012 and that in respect of that treatment, the complainants spent more than Rs.65,000/-. They admitted that letter dated 22.04.2013 was issued to complainant No.1, whereby he was asked to give the undertaking, as mentioned in the complaint. While denying the other allegations made in the complaint, they averred that there was no deficiency in service on their part and the question of applicability of ESI Act does not arise. Complainant No.1 did not supply all the documents, along with the complaint. The complainants have no locus standi to file the complaint, as they are not their consumers. They have not come to the District Forum with clean hands and have not disclosed all the material facts. In fact, they have suppressed the material facts from the District Forum; which itself is a ground for dismissal of their complaint. The same is not maintainable in the present form. They prayed for the dismissal thereof with Rs.10,000/-, as compensation/special costs; being false and they having been dragged into the litigation.
First Appeal No.1092 of 2014 5
4. Opposite party No.3 filed independent written reply, wherein he answered only the allegations made against him in the complaint. He averred that he was never informed by the complainants about the problem and they never approached him for treatment at the first instance, as per the rules and regulations of the department. The case of the complainants does not fall in the category of emergency cases, as per the rules and regulations of the department. Vide those rules and regulations, complainant No.2 was to be referred for treatment and otherwise, the complainants were not entitled to the reimbursement of the expenses. Complainant No.1 was asked to provide the details of the bills, as per the rates fixed by the Director, Family and Health Welfare, Punjab, but he refused to do so. On account of the fact that he did not approach him in the first instance, he is not entitled to the reimbursement of the bills. If the District Forum comes to the conclusion that he is entitled to any claim, then the same is payable only as per the rates fixed by the Director, Family and Health Welfare, Punjab. The complainants are not his consumers and the complaint filed by them is not maintainable. The District Forum had no jurisdiction to entertain and decide the complaint. The complainants have suppressed material facts and have not come to the District Forum with clean hands. He also prayed for the dismissal of the complaint with special costs.
5. Opposite party Nos.4 & 5 filed joint written reply, in which they have taken up the similar pleas, as have been taken up in the written reply of opposite party No.3.
First Appeal No.1092 of 2014 6
6. Parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.
7. The respondents/complainants did not appear before this Commission, in-spite of their service, and were proceeded against ex parte, vide orders dated 13.03.2015 and 09.06.2015. We have heard learned counsel for the appellants/opposite party Nos.3 to 5 and have carefully gone through the records of the case.
8. Learned counsel for opposite party Nos.3 to 5 raised only one argument before us to the effect that the District Forum had no jurisdiction to entertain and decide the complaint, in view of the provisions of Employees State Insurance Act, 1948. He submitted that Section 74 of that Act deals with the constitution of the Employees' Insurance Court and the matters to be decided by that Court are enumerated in Section 75. The matter raised in the complaint is one of the matters referred to in Section 75. In view of those Sections, only the Employees' Insurance Court had the jurisdiction to entertain and decide the complaint. That itself is a ground for allowing the appeal and for setting aside the order of the District Forum. He placed reliance on the judgment of the Maharashtra State Consumer Disputes Redressal Commission, reported in 2006 (2) CLT 486 (Mohammed Ibrahim Shaikh Munir Vs. Employees State Insurance Corporation and Others).
9. At the time the appeal was admitted, the reliance was placed by the counsel for opposite party Nos.3 to 5 on judgment of First Appeal No.1092 of 2014 7 this very Commission, rendered in F.A. No.74 of 2007 decided on 09.03.2007 (M/s R.S. Enterprises Vs. Sattar Khan & Ors.). That was also the case under the ESI Act and the complainant had made prayer for the reimbursement of the expenses incurred by him on his treatment. This Commission, while relying upon the judgment of the Hon'ble National Commission, reported in 1998 (2) CLT 636 (Arun Kumar Gupta Vs. Employees State Insurance Corporation), came to the conclusion that the complaint under the Consumer Protection Act was not maintainable and the same was maintainable only under the ESI Act. While recording that finding, reliance was placed upon the following Paragraph-12 of Arun Kumar Gupta's case (supra):-
"Relying upon the judgment of the Apex Court as well as this Commission cited above, we are of the view that the complaint could not be entertained by the Fora constituted under the provisions of the Consumer Protection Act. The ESI Act being a special Act, the remedy available to the complainant was to approach the ESI Court for appropriate relief. It may also be noticed that the jurisdiction of the Fora constituted under the Consumer Protection Act, 1986 to entertain such type of complaint is barred under Section 75(3) of the ESI Act. As a result, we find no merit in this appeal and it is dismissed. However, we leave the parties to bear their own costs."
10. The same judgment of the Hon'ble National Commission was relied upon by the Maharashtra State Commission in First Appeal No.1092 of 2014 8 Mohammed Ibrahim Shaikh Munir's case (supra) and in view of the observation made therein; the ESI Act being a special Act; the remedy was available to the complainant to approach the ESI Court for appropriate relief; it was held by that State Commission that the Consumer Forum had no jurisdiction to entertain such type of complaints.
11. Similar matter came up for consideration before the Hon'ble Supreme Court in Kishore Lal Vs. Chairman, Employees State Insurance Corporation (2007 (2) APEX COURT JUDGMENTS 403 [SC]). In that case also, the appellant was insured with the Employees State Insurance Corporation under the ESI Act and was making contribution towards the insurance scheme under that Act. His wife was admitted in ESI Dispensary at Sonepat for her treatment for diabetes, but her condition continued to deteriorate and there were instances when the doctors were not available even during emergency. The appellant got his wife medically examined in a private hospital and it was found that she had been diagnosed incorrectly in the ESI Dispensary and the wrong diagnosis was the direct result of her deteriorating condition. He filed a complaint before the District Forum under the Consumer Protection Act; in which the objection was taken by the opposite party that the complaint was not maintainable, on the ground that the appellant was not a consumer and he was entitled to file a complaint under the ESI Act. After discussing in detail the definition of the "consumer", as defined in the Consumer Protection Act, the provisions of Sections 74 and 75 of the ESI Act and the various judgments on that point, it was held by the First Appeal No.1092 of 2014 9 Hon'ble Supreme Court that the appellant was a "consumer", within the ambit of Section 2 (1) (d) of the Consumer Protection Act and the medical services rendered in the ESI Hospital/Dispensary fall within the ambit of Section 2 (1) (o) and, as such, the Consumer Forum had the jurisdiction to adjudicate upon the case of the complainant.
12. No doubt that was a case for the negligence on the part of the ESI dispensary, whereas the present case is for the reimbursement of the amount spent by complainant No.1 on the treatment of his wife from the other hospital, but the ratio of this judgment will certainly apply to the facts of the present case also, in view of Section 75 (1) (e); as even the question or dispute arising as to the right of the person to any benefit and as to the amount and duration thereof, the same is to be decided by the Employees State Insurance Court, in accordance with the provisions of that Act. It was held by the Hon'ble Supreme Court in the said judgment that it has been held in numerous cases by that court that jurisdiction of the Consumer Forum has to be construed liberally, so as to bring many cases under it for their speedy disposal. It was also held therein that any claim arising out of or within the purview of the Employees' Insurance Court is expressly barred by virtue of sub-section (3) of Section 75 to be adjudicated upon by a Civil Court, but there is no such express bar for the Consumer Forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses
(a) to (g) of sub-section (1) of that Section or where the jurisdiction to adjudicate upon the claim is vested with the Employees' Insurance First Appeal No.1092 of 2014 10 Court under clauses (a) to (f) of sub- section (2) of Section 75, if it is a consumer dispute falling under the Consumer Protection Act.
13. In view of the above discussed judgment of the Hon'ble Supreme Court, we conclude that the District Forum had the jurisdiction to decide the complaint filed by the complainants and the same was not barred under the provisions of the ESI Act. In the result, this appeal, which is without any merit, is hereby dismissed.
14. The sum of Rs.25,000/- deposited at the time of filing of the appeal, along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondents/complainants by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
15. The arguments in this case were heard on 26.08.2015 and the order was reserved. Now, the order be communicated to the parties.
16. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (VINOD KUMAR GUPTA) MEMBER September 07, 2015 (Gurmeet S)